Hohfeld vs. the Legal Realists

68 Pages Posted: 28 Feb 2018 Last revised: 8 Jun 2019

See all articles by David Frydrych

David Frydrych

Monash University - Faculty of Law

Date Written: February 14, 2018

Abstract

2018 marked the centenary of Wesley Hohfeld’s untimely passing. Curiously, in recent years quite a few prominent legal historians and philosophers have identified him as a Legal Realist. This article argues that Hohfeld was no such thing, that his work need not be understood in such lights, and that he in fact made a smaller contribution to jurisprudence than is generally believed. He has nothing to do with theories of official decision-making that identify, amongst other things, “extra-legal” factors as the real drivers of judicial decision-making, and nor must his schema of jural relations advance a “Realist” political agenda. Distinguishing Hohfeld from the Realists will help to correct some misunderstandings about his work and point to its utility in many more contexts than a Realist reading of it allows.

Keywords: Hohfeld, Legal Realism, Rights, Legal Rights, Philosophy of Rights, Legal Philosophy, Jurisprudence

Suggested Citation

Frydrych, David, Hohfeld vs. the Legal Realists (February 14, 2018). 24(4) Legal Theory 291-344 (2018), Available at SSRN: https://ssrn.com/abstract=3123686 or http://dx.doi.org/10.2139/ssrn.3123686

David Frydrych (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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